When a lobbying behemoth such as the National Association
of Home Builders (NAHB) loses a legislative battle, its lobbyists
typically do not look to the American Bar Association for
relief, but they appear to have done so at a recent "retreat"
on the takings clause of the Fifth Amendment sponsored by
the ABA's Section of State and Local Government Law.
In early August, the full ABA section will consider
whether to adopt the retreat's "consensus" on takings
law and submit it to the House of Delegates for endorsement.
However, before approving the consensus--which reflects key
portions of the NAHB's agenda--the section should reassess
its merits, as well as the disturbing process by which it
First, some background. The takings clause was
originally understood to require compensation only for physical
expropriations of property, but, in Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393 (1922), the Supreme Court ruled that
a land use restriction may constitute a taking when it "goes
too far" and has "very nearly the same effect"
as an expropriation.
Over the years, the court carefully developed
reasonable "ripeness" rules that prevent developers
from improperly escalating every land use dispute into a federal
takings lawsuit. Thus, under Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172 (1985), and successor
cases, a developer must ripen its takings claim by obtaining
a final decision from local officials regarding how the land
may be used before suing in federal court.
These ripeness rules make sense because a federal
court cannot determine whether a land use regulation "goes
too far" under Mahon until it knows how far the regulation
goes. The Supreme Court also recognizes that land use issues
are quintessentially local issues, land use agencies are flexible
institutions and developers should work with local planners
before running to federal court, lest they turn the federal
judiciary into a board of zoning appeals.
In the 105th Congress, the NAHB pushed hard for radical changes
to these ripeness requirements. H.R. 1534--a bill written
by NAHB lobbyists--is designed to undo Williamson and allow
developers to circumvent local procedures for variances, waivers
and the like by deeming takings claims ripe for federal court
review far earlier in the planning process. The NAHB bill
(recently reintroduced as H.R. 2372) would give developers
a huge new club in their negotiations with community officials:
the threat of early, expensive federal litigation.
The bill died last year as a result of intense,
bipartisan opposition by virtually every major organization
of state and local governments, including the National Governors
Association, the National League of Cities, the Conference
of State Supreme Court Justices, and more than 40 state attorneys
general. The federal Judicial Conference and many organizations
also opposed H.R. 1534.
Among the many arguments against the bill is
the commonsense notion that any problems with local land use
procedures should be addressed at the local level, not by
constitutionalizing the NAHB's one-size-fits-all mandate at
the expense of communities across the country.
The consensus achieved at the ABA retreat regarding
these controversial issues does not represent the views of
the legal profession as a whole. Groups opposed to the NAHB
bill were not invited, whereas the NAHB was represented by,
among others, its chief outside lobbyist and the principal
academic advocate for the bill. The first handout distributed
at the retreat was a copy of the proposed bill, together with
Not surprisingly, the attendees approved a definition
of ripeness similar to the one advocated by the NAHB bill
that would allow developers to sidestep important local procedures
and impose unprecedented burdens on local governments. Also
ratified were proposed changes to substantive takings jurisprudence
that favor developers.
Now, the NAHB lobbyists hope that the ABA's
imprimatur will revive their failing efforts in Congress and
the courts. Quite apart from the principles involved, however,
there is a real question as to what the ABA could gain by
supporting the developers' position on controversial propositions
that would severely tilt the field against local communities
nationwide. The answer is nothing.
Mr. Dowling is chief counsel at Washington, D.C.'s Community
- For the Minutes of the ABA Council Meeting, rejecting
the Retreat Report, click here.